Volume 70 — North Carolina Court of Appeals Reports

1. Constitutional Law 76; Criminal Law 48 — post-arrest silence — impeachment evidence — due process not violated — right to remain silent not violated Where the evidence failed to show that defendant was given the Miranda warnings upon arrest, his Fourteenth Amendment due process rights were not violated by the State's attempt to impeach him with evidence of his post-arrest silence; nor was defendant's Fifth Amendment right to remain silent violated, since the right of a defendant, who chooses to testify in his own behalf, to remain silent must give way to the State's right to seek to determine, by way of impeachment, whether a defendant's prior silence is inconsistent with the trial testimony. 2. Criminal Law 46.1 — flight of defendant — effect on defendant's credibility The trial court did not err in instructing the jury that defendant's flight could be considered in determining defendant's credibility. 3. Assault and Battery 15.7 — self-defense — instruction not required In a prosecution for assault with a deadly weapon inflicting serious injury, defendant was not entitled to an instruction on self-defense where the evidence failed to show any real or apparent threat of death or great bodily harm to defendant.

1. Insurance 149 — sufficiency of notice — general agent Notice of claims against city officials delivered to a general agent with the implied actual authority to accept notice is sufficient to impute notice of the city's liability to the insurance company. Furthermore, there was no conflict of interest and the agent was still acting on behalf of the company, when the agent was also the Executive Director of an Insurance Advisory Commission which gave advice and made recommendations to the city on insurance matters, and when the agent received notice of the claim from the city but did not forward it to the company. G.S. 58-39.4(c).<page_number>Page 652</page_number> 2. Appeal and Error 42; Insurance 5 — incomplete record The record did not permit a determination of whether the claims from which the action arose were against public policy and therefore uninsurable because the record did not include the complaint or any pleading from one case, and the complaint in the other case did not reveal whether the plaintiff would proceed on a theory of intentional discrimination or unintentional discrimination based on disparate impact. 3. Insurance 149 — liability insurance distinguished from indemnity insurance An insurance policy is a policy of liability rather than of indemnity where it provides that the insured parties shall obtain the insurer's consent before incurring any legal fees or settling a claim, and where it also provides that notice of the claim is to be given "as soon as practicable" and that the insurers must pay even when the insured becomes bankrupt or insolvent. G.S. 58-155.48(a)(1). 4. Insurance 149 — other insurance clauses — second policy suspends first Where one public officials liability policy is taken out while another is still in effect, and both policies contain "other insurance" clauses, the issuance of the second policy violates the other insurance clause of the first, and coverage on the first policy is suspended. 5. Insurance 149 — non-duplication of the coverage — effect of deductible clauses Where two public officials liability policies provided concurrent coverage, but one carried a deductible of $1,000 and the other a deductible of $10,000, there is exclusive coverage under the first policy for liability between $1,000 and $10,000, and the non-duplication of coverage statute, G.S. 58-155.52(a), will not prohibit a claim against an insolvent insurer under the first policy for such an amount. 6. Declaratory Judgment 4.3; Insurance 92 — non-duplication of recovery statute — declaratory judgment not barred The exhaustion requirement of G.S. 58-155.52(a) does not impose a precondition to a declaratory judgment action to have various rights and liabilities of the involved insurers clarified; furthermore, G.S. 58-155.52(a) does not apply to concurrent coverage where the operation of an "other insurance" clause has suspended coverage on the policy of the insolvent insurer. G.S. <cross_reference>1-253</cross_reference>. 7. Insurance 1; Judgments 55 — prejudgment interest — guaranty association not liable A guaranty association is not the legal successor of the insolvent insurer; rather, it is obligated to pay claims only to the extent of covered claims, which shall not include any amount in excess of the obligation of the insolvent insurer under the policy from which the claim arises. The North Carolina Insurance Guaranty Association is a statutory creation that does not have liability for prejudgment interest. G.S. 58-155.48(a)(1).

1. Criminal Law 138 — absence of proper sentencing hearing The trial court failed to afford defendant a proper sentencing hearing pursuant to G.S. <cross_reference>15A-1334</cross_reference> where the court told defense counsel a month before the hearing that he intended to give defendant the same sentence of 40 years which he had given to a codefendant, the court repeated this intention when defendant and his attorney appeared in court for the sentencing, and defendant's attorney advised the court that in light of what had transpired, any remarks he would make would be extraneous and he would simply let the court render judgment. 2. Criminal Law 134.4 — youthful offender — failure to make no benefit finding Where defendant was twenty years old at the time of his conviction, the trial court erred in failing either to sentence defendant as a committed youthful offender or to find in the record that he would not benefit from such a commitment. G.S. 15A-1340.4(a).